5/30/2018 2014 LawSuit(All) 1831

1/14

This Software is Licensed to: ARUN OZA

HIGH COURT OF ALLAHABAD (D.B.)

PRAKASH CHAND SRIVASTAV V/S STATE OF U P AND ORS

Date of Decision: 05 June 2014

Citation: 2014 LawSuit(All) 1831

Hon'ble Judges: Krishna Murari, Ram Surat Ram (Maurya)

Appeal Type: Public Interest Litigation

Appeal No: 31890 of 2014

Subject: Constitution, Criminal

Acts Referred:

Constitution Of India Art 16

Indian Penal Code, 1860 Sec 420, Sec 409, Sec 468, Sec 471, Sec 467, Sec 120B,

Sec 411

Final Decision: Petition dismissed

Advocates: Pankaj Kumar, Ashok Mehta

CASES REFERRED :

JANTA DAL VS. H.S. CHAOWDHARY, 1993 AIR(SC) 892

R.K. JAIN V. UNION OF INDIA, 1993 4 SCC 119

PEOPLE S UNION FOR DEMOCRATIC RIGHTS V. UNION OF INDIA, 1982 3 SCC 235

METROPOLITAN PROPERTIES LTD. V. LANNON, 1968 3 AllER 304

E.P. ROYAPPA VS. STATE OF T.N., 1974 4 SCC 3

VINEET NARAIN VS. UNION OF INDIA, 1998 AIR(SC) 889

M.C. MEHTA V. UNION OF INDIA, 2007 1 SCC 110

CENTRE FOR PUBLIC INTEREST LITIGATION V. UNION OF INDIA, 2005 8 SCC 202

RAJIV RANJAN SINGH "LALLAN" (VIII) V. UNION OF INDIA, 2006 6 SCC 613

http://localhost/var/www/apps/conversion/tmp/scratch_3/139707http://localhost/var/www/apps/conversion/tmp/scratch_3/135323http://localhost/var/www/apps/conversion/tmp/scratch_3/136426http://localhost/var/www/apps/conversion/tmp/scratch_3/124698http://localhost/var/www/apps/conversion/tmp/scratch_3/107147http://localhost/var/www/apps/conversion/tmp/scratch_3/3302052http://localhost/var/www/apps/conversion/tmp/scratch_3/111106http://localhost/var/www/apps/conversion/tmp/scratch_3/117764http://localhost/var/www/apps/conversion/tmp/scratch_3/116837http://localhost/var/www/apps/conversion/tmp/scratch_3/01_1860_45-411http://localhost/var/www/apps/conversion/tmp/scratch_3/01_1860_45-120Bhttp://localhost/var/www/apps/conversion/tmp/scratch_3/01_1860_45-467http://localhost/var/www/apps/conversion/tmp/scratch_3/01_1860_45-471http://localhost/var/www/apps/conversion/tmp/scratch_3/01_1860_45-468http://localhost/var/www/apps/conversion/tmp/scratch_3/01_1860_45-409http://localhost/var/www/apps/conversion/tmp/scratch_3/01_1860_45-420http://localhost/var/www/apps/conversion/tmp/scratch_3/01_1860_45http://localhost/var/www/apps/conversion/tmp/scratch_3/01_1949_99-16http://localhost/var/www/apps/conversion/tmp/scratch_3/01_1949_99

5/30/2018 2014 LawSuit(All) 1831

2/14

B. SRINIVASA REDDY V. KARNATAKA URBAN WATER SUPPLY & DRAINAGE BOARD EMPLOYEES ASSN.,

2006 AIR(SC) 3106

SK. SALIM HAJI ABDUL KHAYUMSAB V. KUMAR, 2006 AIR(SC) 396

MEHAR SINGH SAINI, IN RE, 2010 13 SCC 586

M.C. MEHTA V. UNION OF INDIA, 2008 1 SCC 407

STATE OF UTTARANCHAL VS. BALWANT SINGH CHAUFAL, 2010 3 SCC 402

HAIBANSH LAL VS. SAHODAR PRASAD MAHTO, 2010 9 SCC 655

SABHAJEET SINGH VS. STATE OF U.P., 2012 3 ADJ 391

CENTRAL ELECTRICITY SUPPLY UTILITY OF ODISHA V. DHOBEI SAHOO, 2014 1 SCC 161

STATE OF PUNJAB V. SALIL SABHLOK AND OTHERS, 2013 5 SCC 1

Judgement Text:-

[1] Heard Sri Ashok Mehta, Senior Advocate, assisted by Sri Pankaj Kumar, for the

petitioner and Advocate General, assisted by Chief Standing Counsel, for State of U.P.

[2]This writ petition, in the nature of Public Interest Litigation, has been filed seeking

following reliefs:-.

"(i) a writ, order or direction in the nature of mandamus restraining the

respondent No.1, representing the Government of U.P., from appointing

respondent No.3 to the post of Chief Secretary to the Government of Uttar

Pradesh, pending trial of the case arising out of F.I.R. No.RCEOU-1-2007-

E-0002 dated 25.5.2010 U/S 409/411/420/467/ 468/471 & 120-B IPC

wherein charge sheet dated 29.5.2010 has been field before the Chief

Metropolitan Magistrate, Delhi and the F.I.R. No. RCBE/2006E 0007 dated

15.12.2008 U/S 409/411/420/467/468/471 & 120B IPC wherein charge sheet

dated 15.12.2008 has been filed before the Court of the Additional Chief

Metropolitan Magistrate, Esplanade, Mumbai;

(ii) a writ order or direction in the nature of mandamus, restraining the

respondent No.3 from functioning as the Agricultural Production

Commissioner of U.P. and Industrial Development Commissioner of U.P. or

from being posted to any Key Administrative Post in the State of U.P.,

involving administrative and financial functions until conclusion of the two

http://localhost/var/www/apps/conversion/tmp/scratch_3/151663http://localhost/var/www/apps/conversion/tmp/scratch_3/154540http://localhost/var/www/apps/conversion/tmp/scratch_3/560251http://localhost/var/www/apps/conversion/tmp/scratch_3/147485http://localhost/var/www/apps/conversion/tmp/scratch_3/146188http://localhost/var/www/apps/conversion/tmp/scratch_3/141300http://localhost/var/www/apps/conversion/tmp/scratch_3/147705http://localhost/var/www/apps/conversion/tmp/scratch_3/135438http://localhost/var/www/apps/conversion/tmp/scratch_3/139691

5/30/2018 2014 LawSuit(All) 1831

3/14

criminal trials pending before the said respondents before the Court at Delhi

and Mumbai;

(iii) a writ, order or direction in the nature of mandamus, directing the

respondent Government to initiate Departmental Proceedings and other

consequential proceedings against the respondent Nos. 3 and 4 in view of

the charges levelled against the respondent Nos. 3 and 4 in accordance with

law; and

(iv) any other writ, order or direction as this Hon'ble Court may deem fit and

proper considering the facts and circumstances of the case."

[3]When writ petition came for hearing as fresh case on 03.06.2014, the petitioner filed

an amendment application in the Court for amending the writ petition. Apart from other

proposed amendment, the petitioner sought to add prayer (v) in the writ petition as

follows:

"(v). Issue an appropriate writ, order or direction to remove/transfer the

respondent no. 3 from the post of Chief Secretary of State of U.P. and not topost or appoint the respondent no. 3 to any sensitive and key post in

Government of Uttar Pradesh which involves administrative and financial

decision making process."

[4]In short, appointments of Sri Alok Ranjan (IAS) (respondent-3) on the posts of Chief

Secretary, Government of Uttar Pradesh and/or Agricultural Production Commissioner

of U.P. and Industrial Development Commissioner of U.P. are being challenged on the

ground that during his tenure as Managing Director of National Agricultural Co-operative

Marketing Federation of India (hereinafter referred to as the NAFED) an FIR no.

RCBE/2006-E-0007 dated 15.12.2008, under Section 409, 411, 420, 467, 468, 471 and

120-B of IPC was registered against him and various other persons in respect of

criminal conspiracy to cheat the NAFED and misappropriate the funds of the NAFED.

The FIR was investigated by CBI, Economic Offences Wing, New Delhi, wherein charge

sheet dated 15.12.2008 was submitted against respondent-3 also, in the Court of Chief

Metropolitan Magistrate Esplanade, Mumbai and criminal case against him is pending.

Another FIR no. RCEOU-1-2007-E-0002 dated 25.05.2010, under Section 409, 411,

420, 467, 468, 471 and 120-B of IPC was also registered against him again in respect of

5/30/2018 2014 LawSuit(All) 1831

4/14

criminal conspiracy to cheat the NAFED and misappropriate the funds of the NAFED.

The FIR was investigated by CBI, Economic Offences Wing, New Delhi, wherein charge

sheet dated 29.05.2010 was submitted against respondent-3 also in the Court of Chief

Metropolitan Magistrate, Delhi. Respondent-3 is facing criminal trail in the aforesaid

cases. Chief Secretary of State Government heads many committees established under

various Acts and discharges important role in decision making process in administrative,financial, economic, industrial, infrastructure and other policy matters of the State.

Appointment of a person, who is facing criminal trail in economic offences will not be in

the interest of State.

[5]Chief Standing Counsel, on the basis of written instructions, informed that Sri Alok

Ranjan, was selected and appointed in Indian Administrative Services (for short IAS) on

12.07.1978. In the Gradation List of IAS Officers of Uttar Pradesh Cadre, as published

on 01.01.2014, he is at Serial no. 8. Officers from Serial no. 1 to 3 have retired, Officers

at Serial Nos. 4, 5 and 7 are now posted in Central Cadre and Sri Javed Usmani, earlier

Chief Secretary, Government of Uttar Pradesh has also now opted for Central Cadre.

Thus at present Sri Alok Ranjan is senior most. After completion of 30 years continuous

service, he was promoted in the Pay Scale of Chief Secretary in July, 2012. He was

also elected as President of IAS Officers Association of Uttar Pradesh Cadre. Thus he

has a good hold upon administrative wing of Uttar Pradesh and he is a most suitable

candidate. As such on the recommendation of Cabinet of Ministers, Uttar Pradesh

Government, Hon'ble Governor appointed him as Chief Secretary.

[6] Learned Advocate General raised following preliminary objections regarding

maintainability of the writ petitions;-

(i)The petitioner has not disclosed the facts as required under Chapter XXII

Rule 1 (3-A) of High Court Rules and the petition is liable to be dismissed onthis ground alone as held by this Court inSabhajeet Singh Vs. State of U.P.,

2012 3 ADJ 391 and Public Interest Litigation (PIL) No. 25243 of 2014

Gaurav Upadhyay Vs. State of U.P. (decided on 05.05.2014).

(ii)Appointment as Chief Secretary is an incidence of service and Public

Interest Litigation is not maintainable in service matters as held by Supreme

Court in Haibansh Lal Vs. Sahodar Prasad Mahto, 2010 9 SCC 655.

[7]We take up the second preliminary objection first i.e as to whether Public Interest

http://localhost/var/www/apps/conversion/tmp/scratch_3/147485http://localhost/var/www/apps/conversion/tmp/scratch_3/560251

5/30/2018 2014 LawSuit(All) 1831

5/14

Litigation is maintainable in service matters? The phrase 'Public Interest' is not defined

in any statue. However, Black's Law Dictionary (6th Edn.)) defines Public Interest

Litigation as under:

"Public interest.-- Something in which the public, the community at large, has

some pecuniary interest, or some interest by which their legal rights or

liabilities are affected. It does not mean anything so narrow as mere

curiosity, or as the interests of the particular localities, which may be affected

by the matters in question. Interest shared by citizens generally in affairs of

local, State or national Government."

Advanced Law Lexicon defines 'Public Interest Litigation' as under:

"...the expression 'PIL' means a legal action initiated in a court of law for the

enforcement of public interest or general interest in which the public or a

class of the community has pecuniary interest or some interest by which

their legal rights or liabilities are affected."

The Council for Public Interest Law set up by the Ford Foundation in USAdefined "public interest litigation" in its Report of Public Interest Law, USA,

1976 as follows:

"10....Public interest law is the name that has recently been given to efforts

providing legal representation to previously unrepresented groups and

interests. Such efforts have been undertaken in the recognition that ordinary

market place for legal services fails to provide such services to significant

segments of the population and to significant interests. Such groups and

interests include the proper environmentalists, consumers, racial and ethnic

minorities and others"

[8]The Apex Court in the case ofPeople s Union for Democratic Rights v. Union of India,

1982 3 SCC 235 has observed that the public interest litigation is a cooperative or

collaborative effort by the petitioner, the State or public authority and the judiciary to

secure observance of constitutional or basic human rights, benefits and privileges upon

the poor, downtrodden and vulnerable sections of the society.

http://localhost/var/www/apps/conversion/tmp/scratch_3/111106

5/30/2018 2014 LawSuit(All) 1831

6/14

[9] Public Interest Litigation means a litigation to espouse Public Interest. Hon'ble

Supreme Court inJanta Dal Vs. H.S. Chaowdhary, 1993 AIR(SC) 892 held that 'Public

Interest' does not mean mere curiosity.

[10] Public Interest Litigation was initially evolved as a tool to take care of the

fundamental rights under Article 21 of the Constitution of the marginalised sections of

the society who because of their poverty and illiteracy could not approach the court. In

quintessence it was initially evolved to benefit the have-nots and the handicapped for

protection of their basic human rights and to see that the authorities carry out their

constitutional obligations towards the marginalised sections of people who cannot stand

up on their own and come to court to put forth their grievances. Constitutional Courts

gradually enhanced the scope of Public Interest Litigations. Supreme Court inState of

Uttaranchal Vs. Balwant Singh Chaufal, 2010 3 SCC 402 while dealing with the origin

and development of PILs broadly categorized development of Public Interest Litigation

in three phases:-

I.--Phase I deals with cases where directions and orders were passed

primarily to protect fundamental rights under Article 21 of the marginalised

groups and sections of the society who because of extreme poverty, illiteracy

and ignorance cannot approach this Court or the High Courts.

II.--Phase II deals with the cases relating to protection, preservation of

ecology, environment, forests, marine life, wildlife, mountains, rivers,

historical monuments, etc. etc.

III.--Phase III deals with cases where directions have been issued by the

Courts in maintaining the probity, transparency and integrity in governance.

[11]With the origin and evolution of public interest litigation in the country, by judicial

pronouncements, the ambit and scope of public interest litigation was expanded further

by the Supreme Court and the High Courts also under Article 226 following the

Supreme Court passed a number of judgements, orders, or directions to unearth

corruption and maintain probity and morality in the governance of the State. The probityin governance is a sine qua non for an efficient system of administration and for the

development of the country. The absence of corruption is an important requirement for

ensuring probity in governance. The Courts took upon this burden to ensure

http://localhost/var/www/apps/conversion/tmp/scratch_3/146188http://localhost/var/www/apps/conversion/tmp/scratch_3/146188http://localhost/var/www/apps/conversion/tmp/scratch_3/116837

5/30/2018 2014 LawSuit(All) 1831

7/14

transparency and probity in the governance and entertained petitions to ensure that in

the governance by the State, there must be transparency and no extraneous

consideration be taken into consideration, except the public interest.

[12] Reference may be made to the case ofVineet Narain vs. Union of India, 1998

AIR(SC) 889 In the said case, the petitioner who as a Journalist, filed a public interest

litigation alleging that the premier investigating agencies like the Central Bureau of

Investigation and the Revenue Authorities failed to perform their legal obligations and

take appropriate action even when they discovered during investigation with a terrorist,

detailed accounts of vast payments, made to influential politicians and Bureaucrats. The

Apex Court observing that "....... It is trite that the holders of public offices are entrusted

with certain powers to be exercised in public interest alone and, therefore, the office is

held by them in trust of the people" issued various directions in the matter.

[13]Again in the case ofRajiv Ranjan Singh "Lallan" (VIII) v. Union of India, 2006 6 SCC

613 relating to the large scale-defalcation of public funds and forging of accounts

involving hundreds of crores of rupees in the Department of Animal Husbandry in the

State of Bihar, the Court finding that the respondents had interfered with the

appointment of Public Prosecutor, issued various directions. In yet another case ofM.C.

Mehta v. Union of India, 2007 1 SCC 110, a project, popularly known as 'Taj Heritage

Corridor Project Case', filed on the allegations of misuse of 75 acres of land reclaimed

by diverting river Yamuna and misuse of the same for constructing Food Plazas, Shops

and amusement activities, which was investigated by the Central Bureau of

Investigation and on the basis of the report, the Court directed registration of an FIR and

to make further investigation in the matter. By the intervention of the Court, the said

project was stalled.

[14]Again, inM.C. Mehta v. Union of India, 2008 1 SCC 407, the Apex Court held thatthe Judiciary can step in where it finds actions on the part of the legislature or the

executive to be illegal or unconstitutional.

[15] With the broadening of the scope of public interest litigations various litigations

started coming before Courts wherein by means of public interest litigation

appointments to high and important public and statutory offices, were being challenged

on various grounds, existent and non-existent. The issue which arose for consideration

before the Courts was whether a public interest litigation would be maintainable in

service matters. This question was considered by the Apex Court in the case ofR.K.

Jain v. Union of India, 1993 4 SCC 119, wherein the appointment of President of

http://localhost/var/www/apps/conversion/tmp/scratch_3/117764http://localhost/var/www/apps/conversion/tmp/scratch_3/117764http://localhost/var/www/apps/conversion/tmp/scratch_3/141300http://localhost/var/www/apps/conversion/tmp/scratch_3/136426http://localhost/var/www/apps/conversion/tmp/scratch_3/136426http://localhost/var/www/apps/conversion/tmp/scratch_3/139707http://localhost/var/www/apps/conversion/tmp/scratch_3/124698

5/30/2018 2014 LawSuit(All) 1831

8/14

Custom, Excise and Gold Control Appellate Tribunal was challenged. The Apex Court

has observed that judicial review is concerned with whether the incumbent possessed of

qualification for appointment and manner in which the appointment came to be made or

the procedure adopted whether fair, just and reasonable. Exercise of judicial review is to

protect the citizen from the abuse of the power, etc. by an appropriate Government or

department, etc. In Court's considered view, granting the compliance of the above

power of appointment was conferred on the executive and confided to be exercised

wisely. When a candidate was found qualified and eligible and was accordingly

appointed by the executive to hold an office as a Member or Vice President or President

of a Tribunal, then the Court cannot sit over the choice of the selection, but it be left to

the executive to select the personnel as per law or procedure in this behalf. In service

jurisprudence, it is settled law that it is for the aggrieved person i.e.non-appointee to

assail the legality of the offending action, third party has no locus standi to canvas the

legality or correctness of the action. Only public law declaration would be made at the

behest of the petitioner, a public spirited person. Therefore, the contention that there

was need to evaluate the comparative merits of respondents and senior most Member

for appointment as President would not be gone into in a public interest litigation. Only

the proceedings initiated by an aggrieved person, it may be open to be considered.

[16] The issue involved in this petition, i.e. appointment of a Chief Secretary of any

State Government directly came up for consideration before the Apex Court in the case

ofE.P. Royappa Vs. State of T.N., 1974 4 SCC 3, in which it was held that the post of

Chief Secretary is a highly sensitive post. It is a post of great confidence -- a lynchpin in

the administration -- and smooth functioning of the administration requires that there

should be complete rapport and understanding between the Chief Secretary and the

Chief Minister. The Chief Minister as the head of the Government is in ultimate charge

of the administration and it is he who is politically answerable to the people for the

achievements and failures of the Government. If, therefore, for any valid reason the

Chief Secretary forfeits the confidence of the Chief Minister, the Chief Minister may

legitimately, in the larger interests of administration, shift the Chief Secretary to another

post, provided of course that does not involve violation of any of his legal or

constitutional rights. There can be no question in such a case as to who is right and who

is wrong. With the vast multitudinous activities in which a modern State is engaged,

there are bound to be some posts which require for adequate discharge of their

functions, high degree of intellect and specialised experience. The Government has in

the circumstances to make the best possible choice it can, keeping in view the larger

interests of the administration.

http://localhost/var/www/apps/conversion/tmp/scratch_3/107147

5/30/2018 2014 LawSuit(All) 1831

9/14

[17]The issue with respect to the appointment on the post of Chief Secretary also came

up for consideration before the Hon'ble Supreme Court in the case of Centre for Public

Interest Litigation v. Union of India, 2005 8 SCC 202, relied upon by the counsel for the

petitioner. After noting down the facts involved therein the Apex Court has observed as

under:-

"The basic question is whether the appointment of respondent No.3 as Chief

Secretary is proper.

Learned counsel for respondent Nos. 2 and 3 have submitted that as back

as on 17.4.2004 the respondent No.3 was promoted to the Chief Secretary's

grade with a particular scale of pay. Since the respondent No.3 belonged to

the said cadre and grade, one of the posts on which she could be appointedis the post of Chief Secretary. Therefore, there is nothing wrong in her

appointment. Though the post of Chief Secretary may belong to a particular

grade/cadre, it is certainly a key post. The importance of this post was noted

by this Court in E.P. Royyappa v. State of Tamil Nadu and Anr., 1974

AIR(SC) 555.

The argument presently advanced is that since respondent No.3 has been

continuing in the post for five months, no orders should be passed regarding

her appointment till the Commission gives its report. Had this consideration

weighed with the State Government when it made the appointment there

may not have been any difficulty. It could have, considering the importance

of the post, awaited the report of the Commission headed by Mr. Justice K.T.

Thomas. It is not the case of respondent No.2-the State of U.P. that no other

officer is suitable to hold that post or that the services of respondent No.3

are so indispensable that none but she should be appointed as the Chief

Secretary. This is purely a case of justifying an action. Linked with it is the

question of transparency in action. It is true that the allegations against

respondent No.3 have to be established. It is often said that justice should

not only be done but it should appear to have been done. Lord Denning in

Metropolitan Properties Ltd. v. Lannon, 1968 3 AllER 304 said "justice must

be rooted in confidence, and confidence is destroyed when right minded

people go away thinking "The Judge is biased". The logic is equally

applicable to Governmental action and Government. The State Government

could have avoided the washing of dirty linen which as contended by learned

http://localhost/var/www/apps/conversion/tmp/scratch_3/3302052http://localhost/var/www/apps/conversion/tmp/scratch_3/107147http://localhost/var/www/apps/conversion/tmp/scratch_3/135323http://localhost/var/www/apps/conversion/tmp/scratch_3/135323

5/30/2018 2014 LawSuit(All) 1831

10/14

counsel for respondent Nos. 2 and 3 is the sole object of the writ petition.

We do not think it necessary to delve into the question of maintainability of

the writ petition as the same, as noted at the threshold appears to be an

offshoot of the earlier petition."

Thus, the Apex Court did not lay down any binding precedent in this regard

and the issue was left open as matter was pending before the High Court

and Mr. Justice Thomas Commission.

[18]Supreme Court inCentral Electricity Supply Utility of Odisha v. Dhobei Sahoo, 2014

1 SCC 161, held that the whole thing has to be scrutinised from the point of view of

power. Suitability or eligibility of a candidate for appointment to a post is within the

domain of the appointing authority. The only thing that can be scrutinised by the Court is

whether the appointment is contrary to the statutory provisions/rules.

[19]In the case ofB. Srinivasa Reddy v. Karnataka Urban Water Supply & Drainage

Board Employees Assn., 2006 AIR(SC) 3106 wherein appointment of Chief Engineer as

Managing Director was challenged by Employees Union. It was held that it is settled lawby a catena of decisions that the court cannot sit in judgment over the wisdom of the

Government in the choice of the person to be appointed so long as the person chosen

possesses the prescribed qualification and is otherwise eligible for appointment. Similar

view has been taken in Haibansh Lal Vs. Sahodar Prasad Mahto, 2010 9 SCC 655.

[20]Thus the issue as to whether Public Interest Litigation would be maintainable in

service matters is no longer res integra and stands settled by a catena of decisions,some of which, have been noted hereinabove. We may also observe that right to be

considered for promotion is the fundamental right of the public servant under Article 16

of the Constitution of India. As pointed out by the learned Chief Standing Counsel, on

the basis of instructions, that respondent no. 3 was already promoted in the pay scale of

Chief Secretary as long back as in July 2012 and only the Cabinet, in its wisdom, has

taken a decision to post him to function as Chief Secretary of the State of U.P. Thus, the

appointment as Chief Secretary is an incidence of service.

[21]The judicial review of an appointment can be made in a writ of quo warranto and

that too when the same has been made contrary to some statutory provisions or rules.

http://localhost/var/www/apps/conversion/tmp/scratch_3/147485http://localhost/var/www/apps/conversion/tmp/scratch_3/139691http://localhost/var/www/apps/conversion/tmp/scratch_3/139691http://localhost/var/www/apps/conversion/tmp/scratch_3/154540

5/30/2018 2014 LawSuit(All) 1831

11/14

[22]During the course of his arguments, the learned counsel for the petitioner heavily

relied upon the judgment of the Apex Court inState of Punjab v. Salil Sabhlok and

Others, 2013 5 SCC 1. The issue therein was in respect of the appointment of

Chairperson of Public Service Commission. The reliance placed by learned counsel for

the petitioner to support his arguments is totally misfounded. The Apex Court in the said

case held that 'the appointment of the Chairperson of the Punjab Public ServiceCommission is an appointment to a constitutional position and is not a "service matter."

A PIL challenging such an appointment is, therefore, maintainable both for the issuance

of a writ of quo warranto and for a writ of declaration, as the case may be. A clear

distinction has been drawn between Government servant and the constitutional

appointment. In paragraph 74, it was observed as under: -

"74. It cannot be said that Chairperson of the Public Service Commission

holds a post in connection with the affairs of the Union or the State. He or

she is not a government servant, in the sense of there being no master and

servant relationship between the Union or the State and the Chairperson. In

view of the constitutional provisions pertaining to the security of tenure and

the removal procedure of the Chairperson and Members of Public Service

Commission, it can only be concluded that he or she holds a constitutional

post."

[23]InMehar Singh Saini, In re, 2010 13 SCC 586, while drawing a distinction between

service under the Government of India or a State Government and a Constitutional body

like a Public Service Commission, it was observed as under :-

"A clear distinction has been drawn by the Framers [of our Constitution]

between service under the Centre or the States and services in theinstitutions which are creations of the Constitution itself. Article 315 of the

Constitution commands that there shall be a Union Service Commission for

the respective States. This is not, in any manner, linked with the All India

Services contemplated in Article 312 of the Constitution to which, in fact, the

selections are to be made by the Commission."

[24] In the case in hand, since respondent no. 3 holds a statutory post, there exists

relationship of servant and master between him and the Government and his placement

to function as Chief Secretary after being promoted in pay scale of Chief Secretary is

nothing but an incidence of service for which, no Public Interest Litigation is liable to be

http://localhost/var/www/apps/conversion/tmp/scratch_3/147705http://localhost/var/www/apps/conversion/tmp/scratch_3/151663http://localhost/var/www/apps/conversion/tmp/scratch_3/151663

5/30/2018 2014 LawSuit(All) 1831

12/14

entertained. The question though could be examined in a writ of quo warranto.

However, the learned counsel for the petitioner has conceded before us that this is not a

writ of quo warranto.

[25]Now we proceed to take up the first preliminary objection that the petitioner has not

disclosed the facts as required under Chapter XXII Rule 1 (3-A) of High Court Rules and

the petition is liable to be dismissed on this ground alone. Supreme Court inState of

Uttaranchal Vs. Balwant Singh Chaufal, 2010 3 SCC 402, noticed the filing of mass of

frivolous Public Interest Litigations and thereby ruining precious time of Constitutional

Court. In order to preserve the purity and sanctity of the PIL, Supreme Court issued the

following directions:-

(1)The Courts must encourage genuine and bona fide PIL and effectively

discourage and curb the PIL filed for extraneous considerations.

(2)Instead of every individual Judge devising his own procedure for dealing

with the public interest litigation, it would be appropriate for each High Court

to properly formulate rules for encouraging the genuine PIL and discouraging

the PIL filed with oblique motives. Consequently, we request that the High

Courts who have not yet framed the rules, should frame the rules within

three months. The Registrar General of each High Court is directed to

ensure that a copy of the rules prepared by the High Court is sent to the

Secretary General of this Court immediately thereafter.

(3)The Courts should prima facie verify the credentials of the petitioner

before entertaining a PIL.

(4) The Courts should be prima facie satisfied regarding the correctness of

the contents of the petition before entertaining a PIL.

(5) The Courts should be fully satisfied that substantial public interest is

involved before entertaining the petition.

(6) The Courts should ensure that the petition which involves larger public

interest, gravity and urgency must be given priority over other petitions.

http://localhost/var/www/apps/conversion/tmp/scratch_3/146188http://localhost/var/www/apps/conversion/tmp/scratch_3/146188

5/30/2018 2014 LawSuit(All) 1831

13/14

(7) The Courts before entertaining the PIL should ensure that the PIL is

aimed at redressal of genuine public harm or public injury. The Court should

also ensure that there is no personal gain, private motive or oblique motive

behind filing the public interest litigation.

(8) The Courts should also ensure that the petitions filed by busybodies for

extraneous and ulterior motives must be discouraged by imposing exemplary

costs or by adopting similar novel methods to curb frivolous petitions and the

petitions filed for extraneous considerations.

[26]In view of directions of Supreme Court, High Court Rules was amended and sub-

rule 3-A was inserted in Chapter XXII Rule 1 as follows:-

"(3-A) In additions to satisfying the requirements of other rules in this

Chapter, the petitioner seeking to file a Public Interest Litigation should

precisely and specifically state, in the affidavit to be sworn by him giving his

credentials, the public cause, he is seeking to spouse; that he has no

personal or private interest in the matter; that there is no authoritative

pronouncement by Supreme Court or High Court on the question raised and

the result of litigation will not lead to any undue gain to himself or any one

associated with him or any undue loss to any other person, body of persons

or the State."

[27]The petitioner has disclosed his credentials, the public cause and facts regarding

authoritative pronouncement by Supreme Court or High Court on the question raised. It

may be observed that requirement of disclosing about pronouncements of the judgment

of Supreme Court or High Court on the question raised cannot be an Issue of

preliminary objection. Even if disclosure in this respect is not found to be correct, the

writ petition can be examined on merit. However the petitioner has not disclosed that "

the result of litigation will not lead to any undue gain to himself or any one associated

with him or any undue loss to any other person, body of persons or the State". Thus

there is a defect in this respect in the writ petition. But the writ petition cannot be

dismissed without giving an opportunity to the petitioner to remove defect in this respect.

[28]It must not be forgotten that procedure is but a handmaiden of justice and cause of

justice can never be allowed to be thwarted by any procedural technicalities. Procedural

5/30/2018 2014 LawSuit(All) 1831

14/14

requirement is directory and not mandatory. Supreme Court in Sk. Salim Haji Abdul

Khayumsab v. Kumar, 2006 AIR(SC) 396 held that a procedural law should not

ordinarily be construed as mandatory, the procedural law is always subservient to and is

in aid to justice. Any interpretation which eludes or frustrates the recipient of justice is

not to be followed. Procedural law is not to be a tyrant but a servant, not an obstruction

but an aid to justice. Procedural prescriptions are the handmaid and not the mistress, alubricant, not a resistant in the administration of justice.

[29] Since in respect of the second preliminary objection raised with respect to

maintainability of this Public Interest Litigation, we are of the view that in service

matters, the Public Interest Litigation is not maintainable and the dispute relates to

incidence of service, therefore, there is hardly any reason or occasion to give

opportunity to the petitioner to remove defect.

[30]In view of the aforesaid facts and discussions, we are of the considered view that

this writ petition in the nature of a Public Interest Litigation, challenging appointment of

respondent no. 3 as Chief Secretary of State of U.P. and his functioning as Agricultural

Production Commissioner and Industrial Development Commissioner is not

maintainable.

[31] The second preliminary objection raised by the learned Advocate General is

upheld. The writ petition is, accordingly, dismissed.

http://localhost/var/www/apps/conversion/tmp/scratch_3/135438http://localhost/var/www/apps/conversion/tmp/scratch_3/135438